(a) applies to a person who consults or is examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct; but(b) does not apply in the case of a person who has been required by an order of a Judge, or by other lawful authority to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or for any other purpose.

(2) A person has a privilege in a criminal proceeding in respect of any communication made by the person to a medical practitioner or clinical psychologist that the person believes is necessary to enable the medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.(3) A person has a privilege in a criminal proceeding in respect of information obtained by a medical practitioner or clinical psychologist as a result of consulting with or examining the person to enable the medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.(4) A person has a privilege in a criminal proceeding in respect of information consisting of a prescription, or notes of a prescription, for treatment prescribed by a medical practitioner or clinical psychologist as a result of consulting with or examining the person to enable the medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.(5) A reference in this section to a communication to or information obtained by a medical practitioner or a clinical psychologist is to be taken to include a reference to a communication to or information obtained by a person acting in a professional capacity on behalf of a medical practitioner or clinical psychologist in the course of the examination or treatment of, or care for, the person by that medical practitioner or clinical psychologist.(6) In this section,—

clinical psychologist means a health practitioner—

(a) who is, or is deemed to be, registered with the Psychologists Board continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of psychology; and(b) who is by his or her scope of practice permitted to diagnose and treat persons suffering from mental and emotional problems

Drug dependency means the state of periodic or chronic intoxication produced by the repeated consumption, smoking, or other use of a controlled drug (as defined in section 2(1) of the Misuse of Drugs Act 1975) detrimental to the user, and involving a compulsive desire to continue consuming, smoking, or otherwise using the drug or a tendency to increase the dose of the drug.

69 Overriding discretion as to confidential information

(1) A direction under this section is a direction that any 1 or more of the following not be disclosed in a proceeding:

(a) a confidential communication:(b) any confidential information:(c) any information that would or might reveal a confidential source of information.

(2) A Judge may give a direction under this section if the Judge considers that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in—

(a) preventing harm to a person by whom, about whom, or on whose behalf the confidential information was obtained, recorded, or prepared or to whom it was communicated; or(b) preventing harm to—

(i) the particular relationship in the course of which the confidential communication or confidential information was made, obtained, recorded, or prepared; or(ii) relationships that are of the same kind as, or of a kind similar to, the relationship referred to in subparagraph (i); or

(c) maintaining activities that contribute to or rely on the free flow of information.

(3) When considering whether to give a direction under this section, a Judge must have regard to—

(a) the likely extent of harm that may result from the disclosure of the communication or information; and(b) the nature of the communication or information and its likely importance in the proceeding; and(c) the nature of the proceeding; and(d) the availability or possible availability of other means of obtaining evidence of the communication or information; and(e) the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and(f) the sensitivity of the evidence, having regard to—

(i) the time that has elapsed since the communication was made or the information was compiled or prepared; and(ii) the extent to which the information has already been disclosed to other persons; and

(g) society’s interest in protecting the privacy of victims of offences and, in particular, victims of sexual offences.

(4) The Judge may, in addition to the matters stated in subsection (3), have regard to any other matters that the Judge considers relevant.(5) A Judge may give a direction under this section that a communication or information not be disclosed whether or not the communication or information is privileged by another provision of this subpart or would, except for a limitation or restriction imposed by this subpart, be privileged.

10.96 Traditionally, the common law did not recognise privilege from disclosure in court proceedings between a medical practitioner or clinical psychologist and a patient.707 The only protection was a court’s discretion to excuse disclosure where it would breach ethical values and if injustice would not be caused by doing so in the particular case.708

10.97Medical privilege in New Zealand has therefore derived from statute. It arises from the existence of a particular type of confidential relationship, namely a doctor-patient relationship.709 The underlying policy justifications for it are two-fold: society’s interest in encouraging its citizens to seek medical attention and communicate candidly with doctors, and considerations of privacy.710 However, as with all privileges, the concern has always been to balance these imperatives against the need to protect the administration of justice and bring all relevant evidence before the courts.711

10.98The first medical privilege provision appeared in the Evidence Further Amendment Act 1885 (No 14), which specified that communications from patients necessary for their treatment were privileged and inadmissible in both criminal and civil proceedings unless the patient expressly consented to disclosure.712 An 1895 amendment confined this privilege to civil proceedings and restricted it so that it simply prohibited a surgeon or physician from divulging, without the patient’s consent, communications made by the patient for the purpose of treatment. The patient’s consent no longer needed to be “express”.713 Meanwhile, the privilege was inherently narrowed by the provision’s framing as a privilege against disclosure by doctors, meaning that (in theory, anyway) the communications themselves were not privileged and that parties other than the doctor could divulge the information.714

10.99Medical privilege was considered by the Torts and General Law Reform Committee in 1974. It recommended against extending the privilege beyond “communications” but did propose some form of limited privilege in criminal proceedings for communications made to a medical practitioner by a defendant.715 This was enacted in a limited form in 1980.716

10.100The rationale underlying the privilege in the context of criminal proceedings was discussed in the Law Commission’s preliminary paper on privilege:717

This is a case where the administration of justice should give way to the need for confidentiality since the broader aim of securing due compliance with the law is more likely to be achieved through medical treatment than through prosecution. This is particularly true of drug addiction, where legal sanctions have little effect and the most important thing is to rehabilitate the addict.

10.101In that preliminary paper, the Law Commission examined the various relationship-based privileges that had historically been recognised by the courts or the legislature and suggested that at least some of these might in the future be better dealt with under the discretion it proposed apply in respect of confidential relationships rather than continuing to be given an absolute privilege by virtue of the relationship.718

10.102The Law Commission concluded that, while there was justification for some form of medical privilege on privacy grounds in civil proceedings, the interests of the patient were not necessarily being met by the statutory privilege in s 32 of the Evidence Amendment Act (No 2) 1980. It suggested that the matter was better dealt with under its proposed discretionary provision that would apply to confidential information generally.719

10.103With respect to the privilege in criminal proceedings, the Law Commission noted that the privilege then available by virtue of s 33 of the Evidence Amendment Act (No 2) 1980:720

… gives absolute protection, but only in one very specific type of case. This is where, without treatment, there is likely to be further criminal offending. In that case there is a very direct link between the health problem, potential court proceedings and a defined social harm of some magnitude.

10.104The Law Commission proposed that the limited but absolute privilege in s 33 should be brought forward in the proposed Evidence Code and that its ambit be widened to include all information acquired in confidence as a result of the examination or treatment.721 It also suggested a broadening of the protection so that the information would be protected from disclosure in any criminal trial, and not just the trial of the person being treated.722

10.105With respect to the range of health professionals to whom the privilege was to apply, the Law Commission said:723

It may be thought that the group of health professionals covered by s 33 is too narrow. Not all persons to whom addicts and others may be referred for examination, treatment and action will be registered medical practitioners or registered clinical psychologists. The Commission has considered a wider and more functional definition, under which it would be sufficient that the person seeking assistance genuinely believed that the person consulted was appropriately qualified to offer professional assistance in dealing with their condition. But we have rejected that approach as entailing needless uncertainty. The privilege proposed gives absolute protection, and the legislation should clearly indicate its intended scope. The simplest way of doing so is to continue to confine its protection to registered medical practitioners and clinical psychologists. Cases which are clearly analogous should receive appropriate protection under the general discretion.

10.106The only change to its earlier proposals that the Law Commission made in its final report was to extend the privilege to cover communications relating to the prescribed treatment, which might also indicate the nature of the condition being treated.724 The Select Committee recommended no changes to cl 55 of the Evidence Bill, which was substantially similar to s 60 of the Law Commission’s Evidence Code.

What does privilege attach to?

10.107The Law Commission received a submission arguing that there is ambiguity concerning the scope of the protection in s 59, which arises from a problem in the drafting of this provision. In particular, this submission considers that the “unusual way of stating the application of the privilege, by reference to a ‘person’” is a major cause of the problem. The reason that this is potentially problematic is because of:725

… the position of a person to whom both ss 59(1)(a) and (b) might apply. These subsections state that the privilege does and does not apply, respectively, to a person in certain circumstances. In summary, under subs (1)(a), the privilege applies to a person who seeks assistance for a condition that manifests itself in criminal offending (to encourage them to seek treatment, and so prevent the offending), but under subs (1)(b) the privilege does not apply to a person who has been directed to undergo assessment by a court.

What is the position, then, of information contained in medical records, or in the minds of clinicians, that relates to the kind of consultation covered by (a), when a person to whom the information relates is later directed to undergo assessment by a court, contemplated by (b)? The person may later be ordered to undergo psychiatric assessment, for instance, for the purposes of a criminal trial, having earlier been in treatment for an offending related condition. In that case, can the court-ordered, assessing psychiatrist trawl back through that person’s prior records of treatment that would otherwise be covered by s 59(1)(a), and put that material before the court, via their report or their testimony on that report, or not?

10.108The submitters go on to note that there is considerable variation in psychiatrists’ understanding of the operation of the privilege provision, which was apparent at a meeting of the forensic section of the Royal Australian and New Zealand College of Psychiatrists in Wellington in late 2011. Some take the view that a literal reading of s 59(1) means that medical privilege does not apply to a person who has been directed to undergo assessment by a court and therefore that person’s prior medical records can be freely examined, regardless of the type of treatment that they relate to. This approach would have all such material about the person available to be called upon when reporting to the court and could be offered as evidence in court.

10.109The submitters do not consider that any substantial change of this nature was intended when the Evidence Act was passed. We agree that the intention at the time was clearly to maintain the substance of the privilege in criminal proceedings and to broaden its scope, rather than narrowing it in the dramatic way that the above interpretation would do.

10.110The submitters suggest that s 59 should be redrafted to remove the ambiguity as to the scope of the privilege where a person is ordered to undergo assessment by a court. We agree that if the exemption of communications, observations and information made in the course of such an assessment is to be retained (see discussion below), then a redrafting of s 59 is desirable. Such a redraft would make clear that this exemption from the privilege applies only in respect of communications, observations and information arising in relation to the court-ordered assessment and does not in any way affect the privilege that attaches to other medical records of that person.

R23 We recommend amending s 59 to make it clear that the exemption from the privilege in s 59(1)(b) applies to communications, observations and information collected or generated during a court-ordered assessment and does not affect the privilege that attaches to other medical records of the privilege-holder.

Court-ordered reports

10.111At present, when a judge orders that a defendant undergo (for example) a fitness to plead assessment, then anything that is said to the medical practitioner or clinical psychologist who conducts the assessment is not privileged and is admissible against the defendant. This arguably creates a strong incentive for a defendant to refuse to participate or to be untruthful in these psychiatric assessments because of a concern that whatever he or she says may be used in court against them. It might also lead to psychiatrists not asking pertinent questions because the information may be used against the defendant if the matter goes to trial. Either result is arguably undesirable.

10.112For this reason, there may be a case for any information given in the course of these assessments being subject to the privilege and unable to be used in any proceedings (other than, obviously, the fitness to plead assessment itself). However, whether that is so turns on the issue of whether there is real prejudice to the assessment process due to the possibility of information imparted by a defendant in that process being disclosed in subsequent proceedings.

10.113A similar issue about the need to protect communications made in the course of assessments arose in the case of R v X (CA553/2009).726Ronald Young J delivered a dissenting judgment in favour of protecting the confidentiality of communications between arrested persons and forensic nurses who work with the police and courts to conduct assessments of defendants for the purpose of risk. He reasoned that:727

If the confidentiality of these discussions is not protected then counsel acting for such persons are highly likely to advise their client not to talk to a forensic nurse about the facts which have given rise to the charges they face. This advice, if acted upon by a defendant, means the task of the forensic nurses will inevitably be compromised. This will be especially so if there is any suggestion that the police are using this process to obtain confessional evidence by the back door.

10.114In determining where the balance of interests under the discretion to order confidential information not be disclosed under s 69(3) lay, the majority of the Court of Appeal was not convinced that therapy or counselling will be “imperilled” if patients know that the therapist or counsellor may have to reveal information such as plans to commit violence. The majority referred to the judgment of Hammond J in R v Lory (Ruling 8),728 where he suggested that a “certain scepticism is required with respect to the trust patients place in confidentiality regarding their most extreme statements.”729

10.115Subsequently, Scott Optican and Peter Sankoff have discussed the difficulties of adjudicating these sorts of evidential disputes and the lack of an “objectively ascertainable method of predicting when an application to uphold confidentiality should succeed under s 69”, while expressing the view that there is much to be said for Ronald Young J’s conclusion on the issue.730 Their view is that in cases like R v X:731

… admission is likely to be favoured in most instances, especially where the information in question is not available from another source, and is critical to a significant and disputed issue in a criminal trial. The court will effectively be tasked with deciding whether its own need in obtaining a correct result is more important than that of preserving confidence in a relationship that is often external to the criminal justice system. In light of the balancing test, it is hardly surprising that most cases of this type end with a judicial decision under s 69 that confidence – while important – is less critical than the court’s need for the evidence in the proceeding at hand.

10.116We received little in the way of submissions on this issue in the course of our review. The New Zealand Law Society suggested that s 59(1)(b) should preserve privilege for discussion on the facts / merits between a defendant and a court-appointed psychiatrist / psychologist, or that protocols should be established to ensure defendants are properly advised that what they say could end up in an admissible report.732 However, no submissions directly addressed the question of whether there is a real possibility of prejudice to court-ordered assessment procedures due to a lack of privilege attaching to such processes.

10.117Nor has there been an opportunity to conduct consultation with those in the health sector involved in court-ordered assessment procedures to assess whether there is a real possibility of prejudice to assessment procedures because of the exclusion in s 59(1)(b). We consider that such consultation is required.

10.118The issue was subsequently raised with the Ministry of Justice in the context of a number of issues arising in relation to the Criminal Procedure (Mentally Impaired Persons) Act 2003. We have been advised that work on these issues has been deferred for the time being due to competing priorities.

10.119We recommend that the issue of whether court-ordered assessments should continue to be excluded from medical privilege under s 59(1)(b) be examined further in the context of this wider review of related issues when it is advanced. This will provide a good opportunity for the necessary consultation with the health sector to occur.

R24 We recommend that the issue of whether court-ordered assessments should continue to be excluded from the protection of medical privilege by s 59(1)(b) should be examined further in the context of a proposed wider review of issues relating to the Criminal Procedure (Mentally Impaired Persons) Act 2003 and appropriate consultation with the health sector should occur at that time.

Extension of medical privilege to psychotherapists

10.120The Law Commission received a submission from some members of the New Zealand Association of Psychotherapists suggesting that s 59 be amended so that the privilege extends to a person who consults or is examined by a psychotherapist. The key arguments in support of this suggested amendment are:

the work undertaken by psychotherapists is similar to psychologists with respect to the professional and ethical standards that apply, including confidentiality; and

both psychotherapists and psychologists are regulated under the same statutory framework, namely the Health Practitioners Competence Assurance Act 2003.733

10.121As noted above, the Law Commission did specifically consider the range of health professionals to which medical privilege in the Evidence Code would attach. Because the privilege is an absolute one, the Law Commission favoured certainty. Its view was that any relationships with other health professionals that similarly involved confidentiality would receive adequate protection under the general discretion in s 69.

10.122As the Law Commission noted in its Preliminary Paper on privilege, the courts and the legislature have long been alive to the fact that medical privilege involves a balance between the interests of confidentiality and privacy in medical procedures / treatment, and the protection of the administration of justice. As a result, both Parliament and the courts have “hedged the privilege with major limitations … It is readily overridden if the evidence is important to the decision of the case.”734

10.123In a decision involving the predecessors to s 59, the Court of Appeal held that a narrow approach to interpretation of medical privilege was required, and pointed to the existence of s 35 (the predecessor to s 69) as supporting this approach.735 As noted above, the Law Commission saw s 69 as providing a fall-back protection for confidential information which fell outside the narrowly cast medical privilege provision. Indeed, this was the justification for not re-enacting medical privilege in civil proceedings.736

10.124Furthermore, s 69(5) makes it clear that a direction preventing the disclosure of confidential information can be made under s 69(1) notwithstanding the circumstances falling short of establishing a privilege under one of the other provisions in this subpart of the Act.

10.125The Law Commission has not been made aware of any situations where the discretion available under s 69 in relation to confidential information has failed to adequately protect information disclosed in the course of consultation with a health professional that did not attract medical privilege. In the absence of a practical difficulty we are not convinced that any change to s 59 to expand the categories of health professionals covered by the privilege is warranted at this time.

10.126For the sake of completeness, we note that one submission from a psychotherapist suggested that no health professional should have an automatic privilege, but rather, there should be a mechanism by which privilege could be sought on a case by case basis.737 We have not pursued this suggestion as we are satisfied at this point that the relatively narrow privilege that exists in s 59 is appropriate and should be retained.

725Letter from John Dawson and Alisaundre van Ammers to Law Commission regarding the Review of the Evidence Act 2006 (undated) at 1-2 (original emphasis). See also: John Dawson “Medical Privilege and Court-Ordered Psychiatric Reports” (2012) 25 NZULR 239 at 266-267.